2016 Brigham-Kanner Property Rights Conference

Opening Roundtable Honoring de Soto:

One of the most accomplished economists of the late twentieth and early twenty-first centuries, Hernando de Soto has researched, written, and lectured extensively on the importance of property rights in the informal economy. As the global economy looks to cultivate untapped resources, de Soto argues that no nation can offer a strong market economy without adequate protection of private property—both real and intangible. Countries cannot promote innovation and entrepreneurial growth without legal ownership of innovative ideas, products, and tangible assets. De Soto promotes the protection of private property as a fundamental right and as the solution to stimulating economic growth and development. The Opening Roundtable discusses these provocative ideas.

Panel 1: Land Titling, Inclusion, and the Role of Property Rights in Secure Societies

Ever since Hernando de Soto brought the world’s attention to the plight of developing countries transitioning to a capitalist economy, he has been championing the importance of inclusion through the institution of property. In addition to making the intellectual case for extending property rights, he has led efforts to develop land titling programs that enable the poor to acquire formal title to the lands they occupy. Using de Soto’s work as a springboard, Panel 1 explores the role of property rights in addressing poverty, combatting social unrest, and promoting the development of functioning market economies.

Panel 2: Recognizing and Protecting Cultural Property

Throughout human history, armed conflicts have caused extensive damage to and destruction of priceless cultural property. Defined broadly as resources that provide important and non-renewable information about the history, beliefs, accumulated knowledge, customs, and achievements of a people, cultural property can also be damaged or destroyed by environmental harms or basic land development projects. Panel 2 addresses issues and problems affecting efforts to recognize and protect cultural property.

Moderator: Larissa van den Herik, Vice Dean Leiden Law School; Professor of Public International Law at the Grotius Centre for International Legal Studies, Netherlands

Panel 3: Property’s Role in the Fundamental Political Structure of Nations

For centuries, the debate over the role of property in the fundamental political structure of nations has centered on property’s relationship to individual liberty and core societal values. In nations that trace their roots to English law, the debate extends back to the Magna Carta, which delineated the boundaries between fundamental individual freedoms and government power. Hernando de Soto’s work has renewed the debate on the world stage, emphasizing the centrality of strong property rights to democratic capitalism and connecting the increase in global terrorism to the weak property rights of the poor majority found in many countries. Panel 3 examines these positions, focusing in particular on the transferability of property concepts to the political structure of nations with diverse cultures, norms, and traditions.

Panel 4: Property, Equality, and Freedom

Mature and developing nations face a fundamental question about the relationship between equality and property: is it possible to have both strong private property rights and relative equality in resource distribution? Are both necessary for social and political cohesion or for the effective functioning of market economies? Can the protection of private property rights reduce barriers to equality and freedom? What role do cultural differences play? Panel 4 will discuss these and other questions, exploring the relations and dynamics between property, equality, and freedom.

From transportation projects and gas pipelines to urban renewal, economic development, land titling programs, and sports stadiums, government’s power to take property against the will of its owner has played a critical role in promoting public and private welfare. The controversial decision by the United States Supreme Court to allow broad use of eminent domain for economic development ignited a public debate. Efforts to condemn underwater mortgages and pipeline easements for transporting oil and gas overseas have further fueled the debate. Panel 5 extends the debate to the international arena by bringing in comparative perspectives and sharing lessons learned.

Panel 6: Defining and Protecting Property Rights in Intangible Assets

Intangible assets are important to both mature and developing economies. Whether those assets involve innovative ideas, intellectual property, technological or medical advances, security interests, finance capital, or other new assets, intangible assets raise unique issues for property systems. How well do laws governing real or tangible property transfer to intangible assets? What special problems do intangible assets pose for the development and management of property rights? This panel addresses these and other questions relating to property rights in intangible resources from national and international perspectives.

As international efforts to address climate change gain momentum, development in flood zones continues. Coastal property commands a premium price in global real estate markets and continues to be the subject of many development projects despite the warnings about sea level rise. This development has raised serious concerns about whether public entities should ban much coastal development or instead construct ambitious barrier projects to protect shorelines from rising seas. Some advocates argue that these compelling public safety measures, which come at an enormous cost themselves, should trump the need to pay for the private property necessary to build such protections. Do the public safety benefits resulting from shoreline protection projects eliminate the need to compensate waterfront landowners whose property is taken for such projects? Do public entities have an obligation to protect shoreline development from rising seas? Must government pay for the property rights needed to protect against rising seas, whether by construction of shoreline barriers or restrictions on shoreline development? Academics and practitioners debate the merits of these and other questions of fundamental importance to coastal communities.

Panel 8:Property Rights as Defined and Protected by International Courts

Property rights, as the guardian of all other civil liberties, play an important role in respectable societies. Because this conference is being held in the International Legal Capital of the World – The Hague – this panel focuses on international courts and the way in which their property jurisprudence helps to strengthen democracy, reduce conflict and enhance human dignity. Suggested topics include the International Court of Justice’s boundary disputes jurisprudence and its role in conflict avoidance; the International Criminal Court’s reparations and criminal forfeiture provisions; and the European Court of Human Rights property rights jurisprudence.

Panelists:

Nancy Combs, Ernest W. Goodrich Professor of Law, College of William & Mary Law School

Jill S. Gelineau, Williamson & Wyatt, Portland, Oregon

Dr. Frankie McCarthy, Senior Lecturer, University of Glasgow School of Law, Scotland